Author Name:   Sugandha.ch

Personal Capacity of husband & wife, alien enemy and corporation to sue and be sued in Torts

Personal Capacity of husband and wife alien enemy and corporation in Torts

Sir Fredrick Pollock once stated, “There is no personal capacity either in becoming liable for civil injuries or in the power of obtaining redress for them.” The general rule is that “all persons have the capacity to sue and be sued in tort”. However, there are certain exceptions to this general rule and is subject to modification in respect of certain categories of persons.

Herein, three categories will be discussed in both English and Indian legal aspects of torts.

1) Husband and Wife

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

i. Husband’s Liability for Wife’s Torts

- Under the common law, during the earlier phase of development of tort, a married woman couldn’t sue any person for any tort unless and until her husband joined her as a party to plaintiff. Also, it was not possible to sue a wife without making her husband as a party to defendant.

- These anomalies have been by and by removed by the legislative acts, i.e. Married Women’s Property Act, 1882 and Law Reform (Married Women and Tortfeasers) Act, 1935. After these acts, it has become possible for a wife to sue or be sued without making her husband as a joint party to the suit.

- However, if the husband and wife are joint tortfeasors, they can be made jointly liable as such. (Midland Bank Trust Co. Ltd. v. Green, 1979)

ii. Action between the Husband and Wife

- Earlier at common law, husband and wife could not sue each other for any tort committed against each other.

- However, this rule was abolished by the Law Reforms (Husband and Wife) Act, 1962. According to the act, each of the parties to a marriage has the same right of action in tort against the other as if they were not married. But the court had discretion to prevent them from using courts as a forum to settle trivial domestic disputes.

Under the Indian law, personal capacity between husband and wife to sue and be sued in torts is governed by their personal laws, be them Hindus, Sikhs, Jains or Muslims. Regarding Christians, various anomalies were removed by Married Women’s Property Act, 1874.

The Indian Constitution furthermore removes all anomalies present in common law regarding the marital status and their personal capacity. Article 14 embodies a guarantee against arbitrariness and unreasonableness, considering the case of Ajay Hasia v. Khalid Murjib (1983).

2) Alien Enemy

An alien enemy is a person of hostile nation or a person residing in or carrying on business in enemy territory, whatever his nationality, as defined in Scotland v. South African Territory Ltd (1971).

- Under English law, an alien enemy cannot sue in own right, as stated in De Wahl v. Braune. He cannot maintain any action unless when duly licensed by an Order-in Council, or unless he comes into British Dominion under a flag of Truce, a pass, a cartel, or some other act of public authority, putting him in peace.

- Under Indian law, similar principle is followed. It is held that alien enemies who are residing in India with the permission of Central Government may sue in any Court. But an enemy who is without any such permission or residing in a foreign country cannot sue in any Court, as per Section 83 of Code of Civil Procedure.

3) Corporation

A corporation is an artificial person with a legal entity. Features of corporation lie in its name, perpetuity and existence to sue or be sued. Personal capacity of a corporation can be discussed in 2 phrases:

i. Suits by Corporation

A corporation can bring suits for civil wrongs which affect its existence. It can sue for torts against itself. It can sue for malicious prosecution of a winding up petition and even for libel that charges it with insolvency or dishonest and incompetent management. Further, it can sue for defamation where words cause injury to its reputation in relation to its trade or business.

However, it cannot sue for torts like assault, battery, false imprisonment etc. because these are wrongs against a person.

ii. Suits against Corporation

Earlier it was held that a corporation has no mind and thus cannot be sued for torts involving fraud or motive. This difficulty was solved by ‘alter ego doctrine’. A corporation is liable for torts committed by its agents or servants in course of doing an act which is within the scope of the corporation. However, its liability can either be ultra vires or intra vires. Thus, it may be liable for torts like libel, trespass, conversion, negligence etc.

Conclusion
It can be duly concluded that firstly, marriage has no effects on the rights and liabilities on either of the spouses in respect of any tort committed by either of them of by a third party. Secondly, an alien enemy can sue or be sued both under common or Indian law, subject to certain requisites. Thirdly, a corporation, being a legal entity can sue or be sued but subject to certain restraints.

The author can be reached at: sug.ch@legalserviceindia.com

ISBN No: 978-81-928510-1-3
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