1.
A man has a proprietary interest in the services of his family members and servants. Any act of person which hurts the relationships with his family members gives birth to torts.
Wrongs to family relationship may be divided into three categories:
(i) Husband and Wife;
(ii) Parents and Children; and
(iii) Master and Servant
This category deals with the wrongs which affects the husband's rights with respect to his wife and vice-versa.
An action for enticing away other's wife is maintainable in the court in India as well as England. It is considered as an infringement of the plaintiff's rights under the contract of marriage that gives rise to the action. As it was observed in the case Sobha Ram v. Tika Ram, 1936 ILR 58 All 903, that a husband has got a right against a third party for the loss of society or service of his wife. If a husband proves that he has been deprived of consortium or service of his wife by a third party, then this tort is maintainable by the husband.
In Place v. Searle, (1932) 2 KB 497, the plaintiff brought an action against the defendant and alleged that defendant was maintaining intimate relationship with his wife for last six years and persuaded her to leave him telling her `come on, Gwen, we will go' and they left the plaintiff's house.
Scrutton, L.J. observed—
"It seems to me clear, at the present day, that a husband has a right to the consortium of his wife, and the wife, to the consortium of her husband and that either has a cause of action against a third party who without justification destroys that consortium. It is the duty of the wife to reside and consort with her husband. This is the duty which she owes to him and a person who tempts or entices her to violate this duty commits a wrong towards the husband for which he is entitled to recover damages, unless the person who harboured her acted from `principles of humanity', to protect her from her husband's ill treatment, in which no action can be maintained, even though it should turn out that the wife's allegation was unfounded."
In the case of adultery the action is rested upon the same ground as that of enticing the wife away from her husband. To commit adultery with another's wife is a wrong against her husband. In England, the husband's claim for damages is governed under the provisions of the Matrimonial Causes Act, 1950. Even if wife has given her consent to have sexual intercourse, in law, she is incapable of giving such consent since her consent is immaterial in the case of adultery. If the adulterer does not know that the woman is married in that case, in strict law such ignorance is no bar to damages and the damages will be awarded inspite of it. (Butterworth v. Butterworth).
But, in our country, the view is different, in the case of Abdul Samad v. Mohd. Ramzan, 1949 Nag 346, it was observed that the ignorance of defendant that the woman was married is a good defence unless there is some special reason.
In Menon v. Menon & Worth, it was pointed out that where the husband has already obtained damages for enticement of his wife from another man and with whom his wife has also committed adultery, the husband is entitled to maintain a fresh action for the award of damages for adultery against the defendant.
But the position is different with wife. In the case Winchester v. Fleming, (1958) 1 QB 259, it was observed that a wife cannot bring an action for damages solely in respect of adultery committed with her husband. She is also incapable of suing a third party for harbouring her husband.
If a person's wife gets injured by someone then the husband can bring an act against the wrongdoer. Wife is equally capable of bringing an action against the person who causes injury to her husband. These two actions may be brought separately or jointly. In Best v. Samuel Fox & Co. Ltd., 1952 AC 716, wife brought an action against the defendant who injured her husband. Owing to injuries, the husband became incapable of performing sexual intercourse and in consequence the plaintiff (wife) suffered in health. The plaintiff's plea was that due to injury to her husband, she has been deprived of normal marital relations and opportunity of having children. But, the Court held that there was no principle or authority in English Law on which such action could be founded hence she was not entitled to succeed.
Parental rights are those rights which give custody and control of children and to the produce of their labour till they arrive at the age of 21 in England and 18 in India. If children exceed these age then they are not within this rule unless they render actual service to the parents. When a parent has lost the
In Indian law, ignorance of defendant that the woman was married is a good defence
in case of adultery. Upto what extent you agree with this statement—Explain.
services of child and it is proved then only he/she has a cause of action in tort. A relationship of master and servant is necessary between parent and child for the parent to succeed in tort. The parent cannot maintain any action in tort if the child is too young or he is already in service of another person.
In the case Ram Lal v. Tula Ram, (1881) 4 All 97, a married woman was deserted by her husband and she was living with her father. The defendant abducted her then the woman's father sued for compensation for the loss of service of her daughter and also for cost which was incurred by the plaintiff on prosecuting the defendant for abduction. Stuart, C.J., observed that the action was maintainable.
But, if the father has sued for seduction of his daughter, the right to sue doesn't survive the father and the suit abates.
If, anyone who maliciously or with notice, interrupts the relationship between master and servant, he will be liable for actionable wrong. If he does it in following ways—
(i) by procuring the servant to depart from his master's service, or
(ii) by harbouring and keeping him as servant after he has quitted the service, and during the time stipulated for as the period of service, or
(iii) by beating or confining him in such a manner that he is rendered incapable of performing his work.
Some cases and the verdict given for them—
(a) taking of any servant or apprentice out of the service of another is actionable; Barrham v. Dennis, (1599) 2 Cro Eliz.
(b) To seduce a servant from his master who has paid the penalties stipulated for leaving him then no action lies for his seduction; Evans v. Walton, 1867 LR 2 CP 615.
(c) action lies against a third person who maliciously induces another to break his contract of exclusive personal service with an employer although the relation of master and servant may not strictly exist between the employer and the employed; Bowen v. Hall, (1881) 6 QBD 333: 44 LJ 75.
(d) if the agreement to do the work is unreasonable and not binding, an action will not lie against a third person for enticing the contracting party away; D. Francesco v. Barnum.
(e) where injury is caused to a servant, besides the action which the servant himself may have against the wrong doer, the master also, as a recompense for his immediate loss, may maintain an action. The master must allege and prove the special damage he has sustained by the injury to his servant; Berringer v. Great Eastern Rly., (1879) 4 CPD 163.
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