Torts and Marital Rights

Domestic Relations is an evolving area of Tort Law managing the inner functions of a family. The evolution of Domestic Relations Tort has not only influenced the way in which members of the family can collect damages as a result of tortious behaviour for damages or interference with the relatives itself; it has influenced the way during which husbands, wives, kids, and legal guardians are seen as legal entities. The family tort of domestic relations between husband and wife stems from revisions to the historical concept that a woman’s legal identity merges along with her husband’s upon the finalization of a wedding agreement. Under these conditions, without her husband’s signature of approval, she could not enter into contracts, buy property, or take action on her own accord.

Currently, it is common for men and women to pursue a tort against their spouse during a divorce. Within the past, this was illegal due to interspousal immunity. Interspousal immunity means that if a person and woman were legally married they were “one flesh” and possess no right to sue each other. This changed under the Married Woman’s Property Acts, though courts were slow to simply accept these changes.


Torts regarding marital rights are one of the aspects coming within the ambit of the term “loss of consortium”. Loss of consortium means a tort wherein a tortfeasor causes deprivation of the benefits of a family relationship. It is to provide compensation to the spouse or the members of the family by the defendant in a case where personal injuries have occurred to another spouse or family member.

This right originated in the 18th century when a father was compensated by a man who courted his daughter, due to which instead of doing household services, she was spending time with that man. Torts with reference to marital rights was derived from the principle of per quod servitium et consortium amisit which implies “in consequence of which he lost her servitude and sex”. It protects the rights of the husband against personal injuries suffered by him, depriving him of company or association with the spouse.

Torts relating to Marital Rights

Torts with reference to marital rights are rights that give immunity to spouses against a third party for a range of actions which results in interference with the marriage. Torts concerning marital rights protect the deprivation of relationship and also includes loss that a husband or wife suffers because of deprivation from care, affection, and companionship of the other spouse. These are categorized under the two main categories, which are explained below:

  • The first category involves torts for alienation of affection. Under this, the plaintiff spouse seeks loss from the third party who has injured the other spouse. Though these rights are mainly given to spouses because of sexual conflict, there is no law that specifically states that alienation of affection only includes sexual deprivation.
  • The second category includes criminal conversation. A criminal conversation happens when one spouse is cheating on the other by engaging in an extramarital affair. These rights are given, as it is considered that in a marital relationship, spouses have ownership rights over the affection and sexual services of the other spouse.

Types of Torts related to Marital Rights

There are three kinds of torts covered under torts with reference to marital rights which may be committed by a third party. They are as follows:

  • Abduction or taking away a man’s wife
  • Adultery
  • Causing physical injuries to a man’s wife

          1.    Abduction

Under the common law system, a husband has been provided with the right to act against any person who either forcefully or by fraud takes away his wife. A husband has also been given the right to sue if a person entices or persuades his wife to live away from the husband in the absence of a sufficient cause. The real point of an action lies in the loss of consortium of the wife, giving the husband an exclusive right against the tortfeasor who has invaded the wife’s aid, affection, and companionship. In all suits, the principle of per quod amisit is a basic ground that compensates the husband for losing the advantage of wife’s society i.e. her companionship and all the relations the husband has received  after marrying her.

The right of the consortium may be a mutual right that is equally available to both the husband and the wife. Either a wife or a husband can invoke this right if one of them is deprived of the benefit of the other spouse’s society. Society in this context means companionship and all the relations related to a spouse through another spouse. For example, the wife under her right to loss of consortium can sue the defendant for deprivation of the benefit of the husband’s society.

         2.     Adultery

During the medieval period, under the writ of trespass, adultery was maintainable. The action of adultery during the medieval period was called the action for adultery. After the enactment of Divorce and Matrimonial Causes Act, 1957, the action under the writ of trespass was abolished. Now, a husband has to claim damages for adultery under the Divorce and Matrimonial Causes Act, 1957. A husband can either make a claim for damages either in a petition for judicial separation or in a petition demanding only claim for damages for adultery. A wife does not enjoy the same right and has not been given the right to bring a suit against the wrongdoer for claiming damages with regard to adultery committed by her husband.

Under the principles of common law, damages incurred adultery were awarded without requiring any proof of alienation of affection in the conjugal relationship.

3. Causing Physical injuries to the Wife

Under the common law system, a husband can bring an action against the tortfeasor for any physical injury caused to his wife by the actions of the tortfeasor. If due to maltreatment of the tortfeasor, the husband is deprived of companionship and assistance of his wife for any period of time, the husband has the right to get a separate remedy. A wife can also sue a tortfeasor if an injury is caused to her and due to that injury her husband loses the benefit of her society and service which is also known as consortium et servitium. She can either claim damages under a single suit, or she can file two different suits for claiming damages.

In case the wife dies due to the wrongs by the tortfeasor, the husband can claim damages for the death of his wife under the Fatal Accidents Act. The husband is awarded compensation as he loses the services and society of his wife. The only condition that needs to be fulfilled is that the husband and wife should not be living separately from each other while the action of tortfeasor occurred, else no compensation will be awarded.

This right was earlier limited to the husband only but with the passage of your time, the Court has recognized similar rights available to the wife under the loss of consortium.

Examples of torts relating to marital rights-

If there is a car accident of a married victim causing injuries or disabilities, his or her spouse can claim damages from the tortfeasor. The other spouse will not only get damages for paying bills of the hospitals but also compensation for the absence of the victim spouse. If the victim’s spouse suffers some mental injuries, then his spouse will get compensation for mental injuries too.

Pre-requisites of Torts relating to Marital Rights

The one who suffers an injury is known as the victim spouse and the one claiming damages is referred to as the claimant spouse. There are three basic ingredients to be fulfilled by the claimant spouse for receiving compensation under the torts with reference to marital rights:

  • There should be liability of the tortfeasor to the spouse of a victim.
  • Marriage of husband and wife should not be severed.
  • There should be proof of damages by the action of the tortfeasor.

Are these rights available to the cohabitants who reside together without having a legitimate marriage?

Earlier laws were very strict and it provided immunity only to legally wedded spouses. In 1977, in the case of Tong v. Joseon, the California Court continued the practice of recognizing the rights of married spouses only and rejected a claim made by the impaired partner who was not married to the victim girl when the injury took place.

But with the change of time, there have been several claims from the cohabitants who though are not legally wedded but are residing together. In 1980, in the case of Bullock v. United States, the Court of New Jersey overruled the old holding and held that a deprived cohabitant should not be restricted from getting damages for a tortious act which cause interference in the ongoing cohabitant relationship.

Liability of Tortfeasor in the transfer of Sexually Transmitted Disease

In cases where a claimant spouse acquires any sexually transmitted disease from the opposite spouse who has acquired it from a third party, the third party is liable to the claimant spouse. In Mussivand v. David, a wife transferred a sexually transmitted disease to her husband which she had acquired from her lover. The Court held that the lover of the wife is liable to the husband for transmitting the disease to him. The Court specifically stated that the lover would nott be held liable if the wife  was previously conscious of the disease of the lover earllier.

English system on Torts related to Marital Rights

Under English common law, torts related to marital rights were recognized. In Baker v. Bolton, a husband was awarded damages for his wife’s injuries because of a carriage accident till her death. Even after the enactment of Lord Campbell’s Act, the English system continued to not recognize the injuries caused by her death. Until the middle of the 19th Century, Illinois enacted a new Act incorporating the death of the spouse which allowed the successor of kin to sue an individual for causing death.

In Parker v. Dzundza, the Court held that there will be no compensation awarded to the spouse if the connection between husband and wife was already severed by divorce.
Torts related to Marital Rights in India

In India torts related to marital rights are covered under the spousal consortium and is majorly invoked during claims for compensation under the Motor Vehicles Act or in divorce proceedings relating to adultery.

In Abdul Kadar Ebrahim Sura v. Kashinath Moreshwar Chandani, for a very long time, the Supreme Court applied the principle of loss of consortium. It held that a spouse has the right to seek compensation for the death of another spouse which resulted in the loss of companionship and services.

In the Abacus Case, the Supreme Court defined the concept of spousal consortium. The Court held that spousal consortium means the rights which are provided during a marriage for awarding compensation to the surviving spouse for the loss of affection, aid, company, society, and cooperation of the opposite spouse.

In Rajesh et al v. Rajbir Singh et al., the Court held that spousal consortium includes the right of the spouse to company, care, help, comfort, guidance, society, solace, affection, and sexual relations together with his or her mate. The spouse must be compensated appropriately for such loss.The Court awarded one lakh rupees to the widow for the death of the husband.

In Ramkrishna Pillai v. Vijaykumari Amma, the Kerala High Court held that a wife cannot invoke spousal consortium and pressurize her husband for not living with his parents.

Husband and Wife’s Claim and Liability.

In the case of husband and wife, the problem of personal liability is covered under two scenarios. Firstly, the husband’s liability for wife’s torts and secondly, 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 also 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 the wife are joint tortfeasors, then they will be made jointly liable.

Drinkwater v. Kimber[1], explains this point in detail. In this case, a lady was injured because of the combined negligence of her husband and a third party. She recovered a full amount of compensation from the third party. The third party could not recover any contribution from the husband because 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 tortfeasor who paid the total 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 contributions from the opposite spouse who was a joint tort-feasor.

ii)                 Action between Spouses

In common law, there can be no action between the husband and the wife under tort. If the opposite spouse committed a tort, neither the wife could sue her husband nor the husband could sue his wife. The change has been brought about by the Married Women’s Property Act, 1882, and permitted the married woman to sue her husband under torts for the protection and security of her property. The property includes those which are provided in Section 24 of the Married Women’s Property Act, 1882.

Since 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 action of any kind of harm caused by his wife to him.

Importance of Torts relating to Marital Rights

Torts related to marital rights are important because of the aura given to the connection between a husband and wife. Marital relation has always been held auspicious and hence ought to have legal protection. It protects the interests of a husband and a wife against any injury caused to the physical integrity of his or her spouse. It compensates for the deprivation of financial contributions by the injured spouse in the household, affection, and sex caused by the injuries of the tortfeasor.

For example, X injures W’s husband, H in an accident, W can get compensation to recover the damages X has caused by injuring H. Damages may include: H’s monthly pay which is being cut off because he is not going to work due to injuries caused, deprivation of affection and sexual relationship which W would have got if H was not injured, etc.

Marital Rights under Civil and Criminal law?
In India, for all the above-mentioned torts related to marital rights, an individual can institute a suit in a court of law, apart from adultery. Adultery has been abolished as a criminal offense by the Supreme Court in September 2018 in the case of Joseph Shine v. Union of India.

Civil v. Criminal Law

Under the torts related to marital rights, only spouses are given a right to sue the third party However, there is no such limitation imposed in case of a criminal charge. Mere abduction is not made punishable under the Indian Penal Code. It is only an offense when it is coupled with actual force. Whereas, under torts related to marital rights, though an individual entices the opposite spouse without using actual force, an action for damages can be brought against the person.

Under the criminal law, punishment for the offense is given in the form of fines, imprisonment, and the other form of penalties that would not benefit the claimant spouse. However, when a spouse brings an action in the civil court of law, the claimant spouse will be awarded for damages in the form of compensation. Therefore, a spouse should bring an action against the third party for the interference in a Civil Court of law if compensation is a priority.


Torts related to marital rights play a significant role in providing justice to a husband for the deprivation of relationship or companionship of his wife because of the wrongdoings of a tortfeasor. Earlier, it was limited only to the rights of the husband. However, with the evolution of the law, Courts have recognized similar rights for the wife also. In India, both the husband and the wife avail similar rights under the spousal consortium laws which mainly covers accident cases under the Motor Vehicles Act. Therefore, it is concluded that torts related to marital rights overcoming the patriarchy concept have established equal rights for the absence of companionship and services of the opposite spouse.

Frequently asked Questions

  • What are the Torts relating to Marital Rights?
  • What are the types of Torts related to Marital Rights?
  • What are the basic ingredients to be fulfilled by the claimant spouse for getting compensation?
  • What is the liability of a tortfeasor in the transfer of Sexually Transmitted Disease?
  • Why are Torts relating to Marital Rights important?


[1] (1952) 2 Q.B. 281

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